Madhya Pradesh High Court
Shyam Lal vs Kedar on 6 April, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 6 th OF APRIL, 2023
MISC. APPEAL No. 211 of 2008
BETWEEN:-
SHYAM LAL S/O LATE RAMDAS, AGED ABOUT 75
Y E A R S , VILL.PIPARA, TEH.MAUGANJ, DIST.REWA
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI M.P. SHUKLA - ADVOCATE)
AND
1. KEDAR S/O LATE AYODHYA PRASAD, AGED
ABOUT 48 YEARS, VILL.BAROUHI, P.S.NAIGARHI,
DSIT.REWA (MADHYA PRADESH)
2. SMT. ANUJ (DIED) LATE SHR PARMESHWAR
DEEN VILL.BAROUHI, P.S.NAIGARHI, DSIT.REWA
(MADHYA PRADESH)
3. TRIVENI PARAMESHWAR DEEN, AGED ABOUT 35
YEAR S , VILL.BAROUHI, P.S. NAIGARHI, DSIT.
REWA (MADHYA PRADESH)
4. RAM NARESH LATE SHRI PARAMESHWAR DEEN,
AGED ABOUT 32 YEARS, VILL.BAROUHI, P.S.
NAIGARHI, DSIT. REWA (MADHYA PRADESH)
5. RAMLAKHANLATE SHRI PARAMESHWAR DEEN,
AGED ABOUT 30 YEARS, VILL. BAROUHI, P.S.
NAIGARHI, DSIT. REWA (MADHYA PRADESH)
6. SMT. MUNNI BAILATE SHRI PARAMESHWAR
DEEN, AGED ABOUT 28 YEARS, VILL.BAROUHI,
P.S.NAIGARHI, DSIT.REWA (MADHYA PRADESH)
Signature Not Verified
SAN
7. SMT LOTANIAYODHYA, AGED ABOUT 50 YEARS,
VILL.BAROUHI, P.S. NAIGARHI, DSIT. REWA
Digitally signed by MOHD TABISH KHAN (MADHYA PRADESH)
Date: 2023.04.06 19:31:01 IST
2
8. SMT KABILILATE SHR AYODHYA, AGED ABOUT
45 YEARS, VILL. BAROUHI, P.S. NAIGARHI, DSIT.
REWA (MADHYA PRADESH)
9. AWADHSHARANSARJU, AGED ABOUT 45 YEARS,
VILL.BAROUHI, P.S.NAIGARHI, DSIT.REWA
(MADHYA PRADESH)
10. NEEL KANTH MAHAVEER, AGED ABOUT 45
YEAR S, VILL. BAROUHI, P.S. NAIGARHI, DSIT.
REWA (MADHYA PRADESH)
11. TEERATHMAHAVEER, AGED ABOUT 38 YEARS,
VILL. BAROUHI, P.S. NAIGARHI, DSIT. REWA
(MADHYA PRADESH)
12. RAMSAKHA(D)TH.LRS MST.GEDRIRAMSAKHA,
AGED ABOUT 50 YEARS, VILL. DEWARA
(TELIYABAD),TAH. HANUMANA REWA (MADHYA
PRADESH)
13. SUSHIL KUMARRAMSAKHA PATEL, AGED ABOUT
25 YEARS, VILL. DEWARA(TELIYABAD),TAH.
HANUMANA REWA (MADHYA PRADESH)
14. RAMESH KUMARRAMSAKHA PATEL, AGED
ABOUT 20 YEARS, VILL.
DEWARA(TELIYABAD),TAH. HANUMANA REWA
(MADHYA PRADESH)
15. AJAY KUMARSHRI RAMSAKHA PATEL, AGED
ABOUT 12 YEARS, VILL.
DEWARA(TELIYABAD),TAH. HANUMANA REWA
(MADHYA PRADESH)
16. GEETA DEVIRAMSAKHA PATEL, AGED ABOUT 23
Y E A R S , VILL. DEWARA(TELIYABAD),TAH.
HANUMANA REWA (MADHYA PRADESH)
17. SUNITA DEVIRAMSAKHA PATEL, AGED ABOUT 21
Y E A R S , VILL. DEWARA(TELIYABAD),TAH.
HANUMANA REWA (MADHYA PRADESH)
18. KUSUMKALIRAMSAKHA PATEL, AGED ABOUT 16
Y E A R S , VILL. DEWARA(TELIYABAD),TAH.
HANUMANA REWA (MADHYA PRADESH)
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
19. MAMTA DEVIRAMSAKHA PATEL, AGED ABOUT
Date: 2023.04.06 19:31:01 IST
18 YEARS, VILL. DEWARA(TELIYABAD),TAH.
HANUMANA REWA (MADHYA PRADESH)
3
20. THE STATE OF M.P. REWA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRIYAN SHRIVASTAVA - ADVOCATE FOR RESPONDENTS NO. 7,
8, 10, 11 AND 15)
(BY SHRI PARESH PAREEK - ADVOCATE FOR RESPONDENTS NO.13, 14,
16, 17 AND 19)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This Miscellaneous Appeal is filed by the plaintiff/appellant being
aggrieved of order dated 21.08.2007 passed by the learned Additional District
Judge, Mauganj, District Rewa in Miscellaneous Civil Case No.18/2003
whereby an application filed by the appellant under Order 41 Rule 21 CPC
seeking setting aside ex-parte proceedings is rejected.
Learned counsel for the appellant submits that appeal was instituted
against the judgment and decree dated 18.03.1993 passed by the learned Civil
Judge, Class-II in Civil Suit No.57-A/1987. Against this judgment and decree,
appeal was filed before the 4th Additional District Judge, Rewa bearing No.16-
A/93. In the year 1998, Additional District Judge court was sanctioned for
Mauganj and, therefore, case was transferred to Mauganj and New No.71-
A/1998 was given to the appeal.
In this case ex-parte judgment was passed by the Appellate Court on
27.08.1999.
It is appellant's contention that firstly he had not authorized Shri Indrajeet
Prasad Patel to appear on his behalf before the learned 4th Additional District
Signature Not Verified
SAN
Judge, Rewa. It is also submitted that no summons were ever received or
Digitally signed by MOHD TABISH KHAN
Date: 2023.04.06 19:31:01 IST
served on the appellant and, therefore, a decision of the Court at Mauganj to
proceed ex-parte is ex-facie illegal and arbitrary and deserves to be set aside.
Reliance is placed on a decision of a Coordinate Bench dated 03.02.2023
filed in First Appeal No.614/2017 wherein ex-parte proceedings were set aside
after 13 years of they being undertaken.
Shri Paresh Pareek, in his turn, submits that factual matrix of this case is
different. After transfer of case to Mauganj, notices were issued for service on
the plaintiff/appellant. That notice was duly served by the process server
Sampatti Prasad Dubey in presence of witnesses Mohammad Ayub and Suresh
Prasad for the next date i.e. 04.08.1999.
Counsel for the appellant has taken a plea that since notice/summons
were not accompanied with memo of appeal, therefore, service was not
complete on the plaintiff and that was sufficient reason preventing him from
appearing before the appellate Court i.e. the Court of Additional District Judge,
Mauganj, District Rewa.
Shri Paresh Pareek submits that there was sufficient notice to the
appellant about the date fixed by the Appellate Court at Mauganj and
technicalities of summons being not accompanied with a memo of appeal could
not have been resorted to so to avoid appearance and then seeking setting aside
of ex-parte judgment and decree.
After hearing leaned counsel for the parties and going through the record,
few things needs to be highlighted. First aspect is that, admittedly, summons
were served on the appellant for appearance on 04.08.1999. Appellant had
moved an application for obtaining copy of the judgment and decree on
22.04.2003 but he mentioned date of knowledge as 03.05.2003 which has been
Signature Not Verified
SAN
taken to be an adverse circumstance against the appellant. Secondly, no reason
Digitally signed by MOHD TABISH KHAN
Date: 2023.04.06 19:31:01 IST
is given for not appearing after service of summons. This distinguishes the case
of the appellant from that of Bibi Bai Dwivedi, inasmuch as, in that case
summons were allegedly served after the due date. Secondly, on the date so
fixed i.e. 21.03.2003, appellant was not proceeded ex-parte on the basis of the
so called refusal to accept the summons but plaintiff was directed to pay the
fresh process fee and it is noted by a Coordinate Bench that it is not clear as to
whether any fresh process fee was paid in compliance of the order dated
21.03.2023. In this backdrop Coordinate Bench had set aside the exp parte
decree dated 26.04.2004. As mentioned above, facts of the present case are
different.
In this case, summons were duly served for appearance on 04.08.1999
when due to non-appearance exp parte proceedings were drawn against the
present appellant. Trial Court has placed reliance on the decision of this High
Court in Pritikumar Dass Vs. Fatimabi, 1972 MPLJ, Note 52 wherein it is
held that mere irregularity in the service of summons cannot be a ground for
setting aside an ex parte decree if the Court is satisfied that the defendant knew
or but for his wilful conduct would have known of the date of hearing.
Similarly, reliance by the Trial Court on the decision of this High Court in
Gouribai Vs. Dheluram, 1965 MPLJ, Note 12, is on the same issue. When
these judgments are taken into consideration and also the fact that the summons
were duly served for appearance on 04.08.1999 then mere technicalities of not
enclosing the memo of appeal cannot be a circumstance to set aside the exp
parte judgment and decree.
Even otherwise, there is no evidence to counter the findings recorded by
Signature Not Verified
SAN
the learned Additional District Judge that process server Sampatti Prasad Dubey
Digitally signed by MOHD TABISH KHAN
had served the summons in presence of the witnesses Mohammad Ayub and
Date: 2023.04.06 19:31:01 IST
Suresh Prasad. When it was opened to the appellant to have examined these
witnesses to dispute service of summons but since appellant failed to take any
steps examine theses witnesses and prove to the contrary that service of
summons was not made on him for appearance on 04.08.1999, no indulgence is
required in the matter.
Accordingly, this Miscellaneous Appeal fails and is hereby dismissed.
(VIVEK AGARWAL)
JUDGE
Tabish
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2023.04.06 19:31:01 IST
